dissenting. The purpose of the motion, for a new trial in this case is not perceived. A motion for a new trial is only available to enable a party to review the verdict of a jury ; the rulings and decisions of the court are presented upon exceptions. In this case there was no passing upon the evidence by the jury — their verdict was, by direction of the court, merely per forma. If there was any error on the trial, it was that of the court, not of the jury, and the appeal from the judgment brought up for review all exceptions to, or rulings of the court; the motion for a new trial on the minutes was therefore out of place, and properly denied.
The case seems to be this: The plaintiffs purchased a stock of goods of one Phillips on the 22d of June, 1869, valued at $6,000, and took possession of the goods and store. Between that day and the 3d of July, the plaintiffs purchased other goods (leather, boots and shoes), and put in said store, of the value of $150. On July 3d, the defendant, as sheriff, levied, by virtue of several executions against Phillips, upon certain of the goods in said store bought of Phillips, and also upon the said leather, boots and shoes subsequently purchased, and removed the same ; at the time of such levy and removal, the goods so subsequently purchased were pointed out to defendant, he notified of such subsequent purchase, and forbidden to meddle with them; this notice he disregarded.
On the 17th of September, 1869, a petition in bankruptcy was filed against said Phillips; on the 21st day of December, he was adjudged a bankrupt, and in January, 1870, one George Day was appointed assignee. Subsequently, said assignee filed his petition *471in the bankrupt court, asking that plaintiffs deliver to him the goods so purchased of Phillips ; plaintiffs put in ah answer, and thereby presented an issue, which was referred to a register for trial; proofs were taken, and, on the coming in of the report, a decree was entered, declaring the insolvency of Phillips, the sale to plaintiffs fraudulent and void, the value of the goods taken from Phillips 86,000 ; and further holding that, as a portion of them had been taken and sold under executions against Phillips before proceedings in bankruptcy were commenced, the recovery by the assignee against these plaintiffs should be 83,900.
The complaint in this action demanded 81,700 ; it was commenced July 8, 1869, before the proceedings in bankruptcy; it was tried in February, 1874, and before trial plaintiff stipulated not to make claim for any goods bought of Phillips.
At the close of the evidence, the defendant’s counsel requested the court to direct a verdict for the defendant, on the ground that the plaintiffs derived a benefit from the decision in bankruptcy, by its deducting from 86,000, the value of the goods fraudulently purchased, 82,100, as the value of the goods levied upon by the ;defendant, which levy included the goods claimed for in this action; that such deduction was, in legal effect, a transfer of plaintiffs’ title to the assignee, thereby making plaintiffs full satisfaction; that plaintiffs having elected their remedy and obtained satisfaction, they could not again have satisfaction for those goods. The court granted their request.
It is quite certain that the tort for which this action was pending was not tried in the bankruptcy court, and could not have been there tried, as the defendant was not a party thereto. The issue before the register was the validity of the sale by Phillips to these plaintiffs, and the claim by plaintiffs that, if their purchase from Phillips was void, they should not be held for the full value of the goods purchased, but only for such as were left after deducting that portion of Phillips’ goods the sheriff had taken on execution against Phillips.
As the value of the goods was adjudged at 86,000,' and the decree was for only 83,900, it shows that 82,100 was the sum allowed as such deduction, and it is claimed that that allowance included the value of the leather, boots and shoes tortiously taken by defendant, and for which this action is prosecuted. It is not by any means certain that the value of these last-mentioned goods *472formed any portion of the $2,100 deducted, nor do I think it of any consequence.
On the hearing before the register the testimony upon the question whether or not the proceeds of the leather, etc., formed a part of the $2,100 was conflicting; and therefore, if a material question, it should have been submitted to the jury. As a specimen of the testimony, the register said, that the deduction was made from the whole stock bought of Phillips, of all the goods taken on execution; “ I made up th"e value of the goods taken by the sheriff from all the evidence;” that certain witnesses answered, “that the sheriff took a little over one-third of all the goods purchased of Phillips, and that was the data from which I made up the sum.”
The sheriff, the defendant here, was called and sworn; he furnished no schedule of the property levied upon, of the property sold, or any account of sales by him as sheriff, or any statement of the property, if any, on hand. He knew he had been forbidden to take this leather, etc., had been sued for taking it, and that the suit was still pending;- and yet he furnished no evidence to the register of the amount of money realized from the goods taken by him; how much from those claimed by plaintiffs, and how much from those formerly belonging to Phillips; or of their separate values; but allowed the register to jump at a conclusion as to the sum. Fixing the súm as he did, at a little over one-third of the value of the whole of Phillips’ stock, demonstrates the testimony that controlled him
But conceding the value of the leather, etc., levied on, was included in the sum $2,100, deducted from the $6,000, it in no way constitutes a defense for the defendant to this action. The proceeding before the register was in regard to the Phillips goods; the sum for which plaintiffs were liable was the value of the Phillips goods in the plaintiffs’ hands at the time of the petition in bankruptcy, nothing more; and if, in ascertaining the value of those goods, the register made deductions for property taken by the sheriff, not belonging to the Phillips stock, such erroneous deduction did not inure to the benefit of this defendant.
This was not a case of election of remedies; these plaintiffs did not ask to have the value of their goods, tortiously taken, adjusted by the register. There is no proof that plaintiffs had any knowledge of how the register made up the sum for deduction; they asked that the value of the Phillips goods, taken by the sheriff, be *473deducted from the value of the goods bought by "them of Phillips, and they only charged with the balance. They never assented, knowingly, to any adjudication and deduction of other goods. Hence they were not estopped.
The leather, etc., were not the property of the plaintiffs at the ■ time of the hearing before the register; by defendant’s tortious acts the property had been converted, and become his; and if as a witness on the stand, having the opportunity, and full knowledge of all the facts, hé omitted to show exactly how much he realized from the Phillips goods, and how much from the goods claimed by plaintiffs, and make known the claim to the latter; but, without explanation or protest, allowed the proceeds of both, to go to make up the sum of deduction, it was his own fault and not the j>lain-tiffs’; and he is the one who should be held estopped.
The claim for these goods was not property, but a chose in action, and the plaintiffs’ right thereto could not be changed by the acts or mistakes of third parties, without plaintiffs’ express assent.
I think the learned judge erred in directing a verdict for the defendant, and therefore the judgment should be set aside and a new trial granted, costs to abide the event.
Judgment affirmed.